We have extensive experience of dealing with a variety of will and inheritance disputes for estates and beneficiaries. These may include challenging the validity of the will (including concerns over whether the will truly reflected the deceased wishes) or dealing with a disappointed beneficiary. Challenging a will is a specialist and complicated area and there are a number of considerations you should take into account before proceeding.
In this article we look at the strict time limits for claims under Inheritance (Provision for Family and Dependants) Act 1975 (the “Act”), the common grounds to challenge the validity of a Will and the initial steps you can take.
The Act gives the court power to order financial provision from the deceased’s net estate for the benefit of any person who falls within one of the following categories:
- Surviving spouse;
- Former spouse who has not married;
- A person who has cohabited with the deceased for a period of at least 2 years, immediately prior to his or her death;
- A child of the deceased;
- A child of the family; and
- Any other person treated as a dependent provided the deceased died in England and Wales, application was made within six months of the grant of representation, the claimant falls into one of the above categories and the deceased did not make reasonable financial provision for the claimant.
It is important to note that for categories falling under (ii) to (vi), the claim for reasonable financial provision covers what would be reasonable in all the circumstances of the case for the claimant to receive for his maintenance. There is still no definition for maintenance despite attempts by the court in the recent case of Ilott (Respondent) v The Blue Cross and others (Appellants) 2017] UKSC 17.
There is a strict time limit of 6 months from the date of the first grant of representation. If the claim is not brought before the 6-month time limit, you can apply for permission to bring the claim out of time, however, there are a number of issues the court will consider including:
- whether it would be just or proper to grant permission;
- how promptly the application was made after the time limit expired and in what circumstance; and
- whether the defendant’s had notice of the claim and negotiations prior to the expiry of the time limit.
Challenging the validity of the will
The most common grounds to challenge the validity of a will include:
- Lack of Testamentary Capacity;
- Lack of Valid Execution
- Undue Influence; and
It is important to gather as much information before challenging the will and if you do not have a copy of the will, you should write to the solicitors who drafted the will or the person dealing with the administration of the estate.
There is no statutory limitation period for challenging the validity of the will.
There are some preliminary steps you can take if you are concerned with the administration of the deceased’s estate, for example:
- obtaining a copy of the will;
- applying for a caveat preventing the probate from going ahead for a period of 6 months (which can be renewed); and
- gathering as much information as you can from the solicitor who prepared the will including written evidence describing any testamentary document of which he has knowledge of (including the circumstances surrounding it) or the details of who might have a copy.
A request for the documents can be made before proceedings. However, if the documents are not forthcoming from the solicitor who prepared the will, it may be possible to make an application for disclosure.
We approach these disputes in a practical and understanding manner, always taking into account the value of the estate and the potential costs of litigation. Our Litigation and Dispute Resolution team work with their colleagues in our specialist Wills & Trusts team to achieve the best possible outcome for our clients. We often recommend the use of Alternative Dispute Resolution as an effective means of achieving an early and cost effective settlement.
If in doubt, always seek early legal advice.